Keep America Safe Ad and Critics Both Miss the Mark

Liz Cheney is coming under fire for the Keep America Safe video spot, which challenges Attorney General Eric Holder’s hiring of nine attorneys, who formerly represented terrorist detainees prior to their work in the Obama Justice Department – labeling seven of those whose identities are still unknown, as the “Al qaeda Seven.” Criticism is being leveled at Cheney both from the left and the right, with the Huffington Post gleefully pointing out that former Bush Department Justice and State Department officials are extremely critical of the ad.

This entire episode, of course, is reminiscent of the flap that was generated when my good friend, Cully Stimson, then Deputy Assistant Secretary of Defense, indicated that the public, as well as large corporate clients of major law firms, would be surprised to learn that these same law firms were representing terrorist detainees at Guantanamo. And, given the very vehement and regrettably personal reaction to Secretary Stimson’s comment from all corners of the established bar, it is not surprising to find so many prominent members of the bar quickly criticizing Ms. Cheney over this ad.

The ad and the criticism, however, both miss the mark.

Where Keep America Safe has made a grievous error and one which deserves criticism is the summary manner in which it seeks to align the personal views, biases or sympathies of defense counsel with the accused terrorists that these individuals may have represented. There is a long tradition of major law firms stepping forward, often on a pro bono basis, to assume the defense of individuals, whose actions or personal beliefs Americans, generally, might find highly offensive.

This does not, as the Keep America Safe ad clearly implies, mean that defense counsel would support those actions, nor maintain those same beliefs. The criticism, if taken to its logical end, would implicate all criminal defense attorneys in any criminal proceeding – relegating defense counsel to a presumptive stature no better than the criminally accused and equally culpable as the criminally convicted. Such a conclusion is silly.

As to these major law firms (from whom Justice Department officials are often and repeatedly culled), providing pro bono representation in these highly publicized criminal proceedings, it is not unusual for the firm to assign highly skilled attorneys to represent such an individual, where the firm, in fact, knows that the lawyer doesn’t share the beliefs or mores of their accused client for two reasons. First, in such circumstance, they could expect that the lawyers would provide competent, dispassionate advice. Second, the firm may wish to insulate themselves from exactly the type of criticism leveled by the Keep America Safe ad.

Bottom line – insinuating that these Justice Department attorneys are terrorist sympathizers, by virtue of their past representation of the same, is simply wrong.

That being said, a good portion of the criticism leveled at the ad is equally off-base. First, anything with Cheney attached to it is going to be viewed by the left as an anathema. The fact that the ‘underwear in a knot bunch’ at MSNBC is or will be disgusted with the ad, speaks to nothing other than their misguided beliefs about anything other than fawning editorial support of President Obama and his minions. To say, with all due humility, that Keith Olbermann and Rachel Maddow will articulate the nuances of legitimate criticism, as offered above, is pure folly. Sure, MSNBC might trot out its mouthpiece on such matters, George Washington University law professor Jonathan Turley (who took more than his share of pleasure in criticizing Secretary Stimson), but at the end of the day MSNBC won’t feel compelled to legitimize its continued disdain for Liz Cheney.

More troubling for me, as a conservative, however, is the over-the-top and largely erroneous criticism of the Keep America Safe ad from, arguably, the conservative right. Conservative blogger, Paul Mirengoff, compared the ad to McCarthyism in an interview with the Huffington Post’s Sam Stein, stating “[i]t could be worse than some of the assertions made by McCarthy, depending on some of the validity of those assertions.” In a few words, that’s ridiculous.

Mirengoff has apparently lost sight that McCarthyism, as it has come to be known, had a certain governmental imprimatur by virtue of the charges being leveled and the investigations being conducted by a prominent member of the United States Senate. To seriously compare a mulit-year congressional investigation of alleged communist sympathizers, conducted at the highest levels of the federal government, with a one-time internet ad produced by an organization run by private citizens leads one to appropriately question the breadth of Mr. Mirengoff’s understanding of history.

Equally troubling is the glaring omission of the real issue raised by the Keep America Safe ad in comments made by two former Bush Administration officials. Both John Bellinger, a former legal adviser to Secretary of State Condoleeza Rice, and Peter Keisler, a former Justice Department attorney, were quick to defend the tradition of pro bono representation for controversial criminal defendants. Both seemingly defended the notion that such service wouldn’t objectively render any of those attorneys unqualified, nor unsuitable for later government service in the Department of Justice. All well and good – but that glosses over the issue which really ought to be driving the need for disclosure of the identities of these seven other lawyers.

The issue is ‘ethics.’ It’s the elephant in the corner of the room that none of the commentary wishes to acknowledge and which the Keep America Safe ad, unfortunately, inartfully obfuscates.

There are ethical prohibitions and restrictions, which in certain limited circumstances might be implicated by, first, private representation of criminal defendants in legal matters with the Department of Justice and then successive employment by the Department of Justice, itself. Whether this is so is a function of who these people are and what did they do – some of what they did is known and some is not. And, in order to make an educated determination about whether there is a legal ethics issue implicated in these matters, both the identities of the attorneys and the nature of their prior work and current work needs to be understood.

Let me be clear – in no way am I challenging the ethics of the attorneys involved. However, in the context of an Administration which has, for purposes of electoral gain and appearance, made repeated statements about the importance of transparency in government, it is curious why the Department of Justice has been seemingly so reticent about promptly making known the identities of all attorneys, with their corresponding prior work on matters potentially within the purview of the Department of Justice.

The public must have the assurance, like any client in any attorney-client relationship, that their attorneys are not compromised in representing the public interest, due to past representation that might be materially adverse to such public interests or by some private or other association or interest, which while maybe not technically a product of the prior representation, but which (for a variety of reasons) might affect the ability to provide unfettered and appropriate counsel on these significant issues of public interest. These ethical questions, which are routinely addressed by attorneys each and every day, should be quickly and appropriately resolved by a prompt disclosure of the identities of these Department of Justice lawyers and the nature and entire breadth of their prior work.

Regrettably, neither the Keep America Safe ad, in its misguided desire to needlessly disparage these public servants, nor conservative criticism, which speaks to the tradition and appropriateness of such pro bono work, but not to the ethics of successive government work and whether such ethical questions have been sufficiently resolved in this matter to the satisfaction of the client, i.e. the American public, have done justice to this weighty matter of legitimate public interest.